Official Assignee v Mathiesen - [2018] NZHC 1418

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-Ō-MARU ROHE

CIV-2016-476-000049 [2018] NZHC 1418

BETWEEN
THE OFFICIAL ASSIGNEE

Applicant

AND

GABRIELLE PAULETTE MATHIESEN

First Respondent

AND

GORDON WALLACE CAMERON MCNAB

Second Respondent

Hearing: 13 June 2018

Appearances:

G Slevin for the Applicant Second Respondent in person

Judgment:

14 June 2018

ORAL JUDGMENT OF NATION J

[1] In a judgment of 30 April 2018, Dunningham J made a number of orders concerning the first and second respondents.1 The orders sought were to enable the bailiff of the Court to effect the sale of a property at 282 Timaru-Pareora Highway, Timaru (the property), in accordance with previous judgments of the High Court.

[2] Gendall J made orders on 13 December 2017 requiring the respondents to give vacant possession of the property so it could be sold in order for the Official Assignee to distribute the proceeds to Mrs Mathiesen’s creditors.2

1 The Official Assignee v Mathiesen [2018] NZHC 843.
2 Official Assignee v Mathiesen [2017] NZHC 3108.

THE OFFICIAL ASSIGNEE v MATHIESEN & MCNAB [2018] NZHC 1418 [14 June 2018]

[3] Dunningham J was satisfied the respondents, that is Mr McNab and Mrs Mathiesen, were in contempt of Court. She directed arrest warrants were to issue in respect of both Mr McNab and Mrs Mathiesen. The arrest warrants required both respondents to be brought before the High Court to answer the warrants. Mrs Mathiesen, Mr McNab tells me, is currently in Canberra however Mr McNab was informed of the warrant that had been issued and, through discussions with the registrar in Timaru, arranged to appear voluntarily in the High Court in Timaru and a hearing was arranged for 4.00 pm today for that purpose.

[4] Arrangements were made so that the High Court could convene. I was required to preside over the hearing. Mr McNab appeared in Timaru but appeared in Court by audiovisual link with me. Mr Slevin appeared for the Official Assignee.

[5] At the commencement of the hearing, Mr McNab made the point that he was not appearing voluntarily, he was appearing really under the threat of the arrest warrant. In fact, he asked for the arrest warrant to be formally served on him. I agreed to this and so the hearing proceeded on the basis that the warrant had been served and he was being detained in Court pursuant to that warrant.

[6] The purpose of the hearing today was to determine what, if anything, I should do about the fact he had been found to be in contempt of orders that had been previously made by the High Court.

[7] At the commencement of the hearing, Mr McNab asked me to identify myself and then argued that I should recuse myself. I dealt with that request in a minute dictated earlier. We then carried on with the hearing.

[8] Mr McNab had a number of submissions to make. He again asked me to recuse myself and gave…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Official Assignee v Mathiesen

Details

AGLC: Official Assignee v Mathiesen [2018] NZHC 1418
Case: [2018] NZHC 1418
Decision Date: 14 June 2018

CaseChat Overview and Summary

The case of Official Assignee v Mathiesen involved the Official Assignee seeking to enforce previous court orders for the sale of a property located at 282 Timaru-Pareora Highway, Timaru, to distribute the proceeds to the creditors of Mrs Mathiesen. The property was subject to previous judgments by the High Court, which required the respondents, Mr McNab and Mrs Mathiesen, to vacate the premises. Despite these orders, Mr McNab and Mrs Mathiesen failed to comply, leading to findings of contempt of court. The matter was heard by Nation J, who was tasked with determining what action to take in response to the respondents' contempt. Mr McNab, who appeared via audiovisual link, argued against the legality of the proceedings and the validity of the orders, but these arguments were rejected by the court. The court found Mr McNab in contempt and sentenced him to imprisonment until further orders, with a review of his case scheduled for 18 June 2018.

The primary legal issues in this case revolved around the enforcement of previous court orders and the contempt of court stemming from the respondents' failure to comply with those orders. The court had to consider whether the previous judgments and orders were lawful and enforceable, as well as the appropriate response to the respondents' contempt. Mr McNab's arguments challenging the legality of the proceedings and the validity of the orders were rejected, affirming the court's authority to enforce its previous judgments. The court's decision to sentence Mr McNab to imprisonment was based on the necessity to prevent further interference with the court's orders and to ensure the sale of the property could proceed as directed.

The court's reasoning was grounded in the enforcement of its previous orders and the need to address the respondents' contempt. Nation J rejected Mr McNab's arguments regarding the unlawfulness of the proceedings and the invalidity of the orders, reaffirming the court's authority and the binding nature of its previous judgments. The court found that Mr McNab's failure to comply with the orders constituted contempt and, in the absence of any indication that he would comply with the court's orders, determined that imprisonment was necessary to prevent further interference. The sentence was set for the shortest possible period to allow for the initiation of the sale process, with a review scheduled for 18 June 2018 to consider any further steps required.

The final orders of the court included sentencing Mr McNab to imprisonment until 10.00 am on 18 June 2018, at which time the court would review the contempt and consider any further actions necessary. This sentence was intended to facilitate the sale of the property and to prevent any further interference by Mr McNab with the court's orders. A warrant was issued for Mr McNab's arrest to commence his sentence.

Orders